BC Court of Appeal Rules Mexico Improperly Interfered with BC Unionization Effort: United Mexican States v BC
At issue in United Mexican States v British Columbia Labour Relations Board, 2015 BCCA 32 [United Mexican States], was whether the Mexican government could claim sovereign immunity from prosecution under the Labour Relations Code, RSBC 1996, c. 244 [the Code]. The Mexican government had argued that its sovereign immunity would be violated if the British Columbia Labour Relations Board (“the Board”) ruled as to whether Mexico and its Vancouver consulate colluded with a BC agricultural employer to prevent the formation of a union of agricultural workers.
The workers in the case were hired through the Seasonal Agricultural Workers Program (“SAWP”), a program established through bi-lateral agreements between Canada and other countries. Countries—such as Mexico—that are party to the trade agreement exercise enormous control over selecting the citizens who may work in Canada under the program. As such, Mexico could terminate worker participation in the program at any point.
It was this State-enforced precarity of working conditions that contributed to the main issues in the case, and, as the United Food & Commercial Workers Canada, Local 1518 (“the Union”) argued, to the decision of the workers to file a decertification application not long after becoming certified.
Facts and Judicial History
Writing for the Court of Appeal, Justice Harris noted that many of the facts of the case had been outlined in the decisions of the lower court in United Mexican States v British Columbia (Labour Relations Board), 2014 BCSC 54.
The Union became certified as the bargaining agent for workers employed by Sidhu & Sons Nursery Ltd. (the “Employer”), a nursery and farm in BC. Subsequent to a representation vote, certain workers in the Union applied to decertify the Union under s. 33(2) of the Code.
The Union challenged the decertification application on the grounds that Mexico had engaged in unfair labour practices, contrary to ss. 6 and 9 of the Code; and improper interference, within the meaning of s. 33(6)(b) of the Code. The provision notes:
(2) If a trade union is certified as the bargaining agent for a unit and not less than 45% of the employees in the unit sign an application for cancellation of the certification, the board must order that a representation vote be conducted within 10 days of the date of the application or, if the vote is to be conducted by mail, within a longer period the board orders.
(6) If an application is made under subsection (2), the board may…cancel or refuse to cancel the certification of a trade union as bargaining agent for a unit without a representation vote being held, or without regard to the result of a representation vote, in any case where
(b) the board considers that because of improper interference by any person a representation vote is unlikely to disclose the true wishes of the employees.
As a result, the Union argued that the vote was unlikely to represent the true wishes of the employees in their vote on union representation.
In a preliminary objection before the Board, Mexico argued that the Board was barred from adjudicating in relation to its conduct by the doctrine of state immunity under s. 3(1) of the State Immunity Act, RSC, 1985, c S-18 and was therefore prohibited from making a finding that it had engaged in improper interference. Section 3(1) states:
3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.
The Union argued that Mexico had developed a policy of preventing workers who had supported the union from returning to Canada. The Union intended to introduce evidence in this regard, and informed the Board that it would call former employees of the Mexican consulate to testify in regards to Mexico’s seasonal agricultural worker policies. The Board ruled that the Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 [Vienna Convention] prevented them from hearing the testimony of the former consulate employees.
The Board dismissed the Union’s unfair labour practices complaint, as the Board determined that it lacked jurisdiction to compel Mexico to participate as a party to the proceedings, and could not make orders against Mexico. However, the Board did determine that it could rule on the issue as to whether Mexico had improperly interfered in the unionization drive, as this had an impact on the Board’s discretion under s. 33(6) of the Code to refuse to cancel the certification.
Both Mexico and the Union applied for reconsideration of the initial Board decision. In the reconsideration decision, a majority of the Board ruled that they could in fact hear testimony from the former consulate employees. The Board also ruled that it was not prevented from determining whether Mexico had improperly interfered with the unionization effort. Mexico applied for judicial review of the Board’s decision to the BC Supreme Court, however the chambers’ judge, Madam Justice Warren, dismissed its application.
In her decision, Justice Warren distinguished “improper interference” from an “unfair labour practice.” Justice Warren also determined that a finding of “improper interference” under s. 33(6)(b) would be a basis to dismiss a decertification application, but that a finding of improper interference does not constitute a violation of the Code. Thus, state immunity did not prevent the Board from making a determination on improper interference. Justice Warren noted,
It is one thing for Canadian courts to refrain from imposing Canadian labour law on a foreign employer if necessary to avoid interfering with a foreign state’s sovereign functions. It is quite another thing to ignore conduct of a foreign state that is relevant to the imposition of Canadian labour law on a Canadian employer. In my view, a determination by the Board that Mexico’s conduct has legal consequences for Canadian employers and their employees would not interfere with Mexico’s autonomy. Such a finding, if made, would not purport to regulate, change, or interfere with Mexico’s conduct. It would merely acknowledge that Mexico’s conduct can have consequences for others under Canadian law (para 133).
As a result, Justice Warren agreed with the decisions of the Board that a finding of improper interference did not impact on state immunity, since it impacted workers in Canada, rather than in Mexico.
Decision at the BC Court of Appeal
Mexico appealed this decision to the BC Court of Appeal. The Court of Appeal dismissed Mexico’s appeal, agreeing with the lower court that a finding of “improper interference” under s. 33(6)(b) of the Code did not amount to an exercise of jurisdiction over the individual or organization that had engaged in improper interference. Therefore the doctrine of state immunity was not applicable.
In determining the standard of review on appeal, the Court noted that an appeal from a judicial review first requires the Appeal Court to determine whether the reviewing court selected the correct standard of review. The Appeal Court must then determine whether that standard was correctly applied. As a result, the Court observed that this standard of review effectively means that it is reviewing the decision of the tribunal directly, as no deference need be afforded to the reviewing court.
As administrative law in BC is governed by the Administrative Tribunals Act, SBC 2004, c. 45 [ATA], the Court turned to s. 58(2) of the ATA to determine the standard of review. The Court observed that the Board has exclusive jurisdiction to decide questions arising out of its Code, but a matter such as the scope of state immunity was not within the Board’s jurisdiction. As such, the Court of Appeal applied the correctness standard to determine “whether the chambers judge was correct to find that the Board itself was correct in its conclusions as to the scope of state immunity under the SIA” (para 28). However, at the Court of Appeal, no deference was owed to the lower court, and it focused on whether the chambers judge reached the correct result in applying the patent unreasonableness standard (para 29).
The Court of Appeal agreed with the lower court’s analysis of state immunity, in that Mexico had not put forward a state immunity argument, but rather one of state doctrine. Nevertheless, the Court concluded that this was not an appropriate case to apply state doctrine. As such, the Court found that the Board had not attempted to exercise jurisdiction over Mexico when it determined the improper interference issue. On these grounds, the Court of Appeal upheld the Board’s decision that the Mexican government had improperly interfered in the unionization effort.
This court challenge illustrates one of the ways in which workers can attempt to challenge divisions amongst them, such as that between Canadian and foreign workers. Rather than viewing foreign workers as a threat to Canadian jobs, unions have adopted legal and political strategies to foster solidarity and point their criticism at the real culprit: the neoliberal state. This case also illustrates how the Canadian state not only colludes with employers against workers, but international states as well.